FAKIRAPPA AMRETAPPA ANNIGERI Vs. YELLAPPA BASAPPA GENAPPANAVAR

JUDGEMENT

(1.) The plaintiff who is the respondent filed a suit out of which this second appeal arises for the refund of Rs.5000 paid by him to the defendant who is the appellant as consideration for the sale of 4 acres out of the land measuring 5 acres 11 guntas situated in Kuttakati village, Gadag Taluk, under the registered deed of sale dt.1-5-1961. In pursuance to the sale, the plaintiff put the defendant in possession of the property. The sale transaction was held to be void by the Assistant Commissioner under S.9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, Act 62 of 1947, hereinafter referred to as the Act. Since the sale was of 4 acres out of 5 acres 11 guntas, the remaining area being 1 acre 11 guntas which is less than the standard area which is fixed at 3 acres for the locality and since such a transfer is prohibited and treated as void under Ss.8 and 9 of the said Act, and the sale was held to be void by the Assistant Commissioner, both the lower Courts have decreed the suit.

(2.) The writ petition filed by the plaintiff in WP.2527/1963 challenging the order of the Assistant Commissioner was also dismissed. The present suit was filed on 28-11-1964.

(3.) It is contended on behalf of the appellant by Sri V.Krishnamurthy, his learned Counsel, firstly, that since the contract is illegal and not merely void under Ss.8 and 9 of the Act and the illegal object has been carried out, both parties being in pan delicto, restitution is not permissible under S.65 of the Indian Contract Act, and secondly even otherwise, since the contract is void ab initio, the cause of action for the suit arose on 1-5-1961 and therefore the suit is barred under Art.24 of the Limitation Act, 1963 which corresponds to Art.62 of the Limitation Act, 1908.